Questions?

8.08.2010

For better or worse, the Constitutional Court of Bosnia and Herzegovina has for a long time been recognized as one of the most important actors in the integration of post-conflict Bosnian society. The role of the Court in such complicated legal and political circumstances is complex, particularly when its decisions can, and certainly do, have significant impact on political processes in the country. Thus, its struggle to maintain the authority and keep the legitimacy of judicial review, though certainly not unique, is challenging.

That struggle is not helped by the way the judges are selected. The Constitution of B&H provides that the Constitutional Court will have 9 judges, of which 6 (4+2) are selected by the legislatures of the two entities in Bosnia and Herzegovina (regarding which a constitutional custom has developed that the 2 coming from Republika Srpska will always be Serbs, while 4 coming from Federation of Bosnia and Herzegovina will always be Bosniaks and Croats), and 3 are selected by the President of the European Court of Human Rights after the consultations with the Presidency. The latter 3 cannot be citizens of B&H or neighboring countries. The only criterion is that the judges should be distinguished jurists of high moral standing. Judges serve until age of 70, unless they resign or are removed for cause by consensus of the other judges.

Judges are selected by the entities in a very untransparent manner, but more significantly they are often very prominent politicians form the party that has a majority, at that moment, in the parliament of the respective entity. Looking at just the latest selections, one recognizes famous faces in Bosnian politics, two former vice-presidents of their respective parties and one long time member. Needless to say, the discarding of their former political identities, so important when faced with legitimacy problems, can prove challenging.

The latest controversy arose earlier this year after a non-governmental organization came into possession of a letter written by a Serb member of the Court, Krstan Simić, who was a vice-president of his political party prior to selection, written to his former party leader, currently a Prime minister of Republika Srpska, expressing his objection to the fact that his former “boss” (he refers to him as such in the letter) does not “use his [Simić’s] experience and possibilities“ more often. He also explains that it is proving impossible to lobby the foreign judges, while the local judges are already influenced. He also uses the opportunity to council the Prime minister on certain selections in the administration (nepotism in action). After this correspondence was revealed in the press, Judge Simić wrote several interviews and organized a press conference stating that he has evidence of hidden criminality in the Constitutional Court.

After the relevant procedure, in which the judge had a chance to appear before the Court at its extraordinary session and to send his written response to the Recommendation for his dismissal, the Court unanimously adopted, on 8 May 2010, a Decision dismissing Judge Simić. The grounds were that he had intentionally damaged the image and the dignity of the Court, as well as the image and the dignity of the judge. After reiterating the principles of judicial independence and impartiality as foreseen in the European Convention on Human Rights, the Court stated that the letter not only indicates that Simić had not broken his ties with his former political party, but was rather initiating such contacts himself. For the Constitutional Court it was irrelevant that the letter was of private and not public nature, and that the Prime Minister might indeed be a personal friend of the judge. With regards to his subsequent public appearances, Judge Simić invoked his freedom of expression, but the Constitutional Court indicated that such freedom was not absolute, particularly citing paragraph 2 of the Article 10 of ECHR providing that the freedom may be restricted with the aim of “maintaining the authority and impartiality of the judiciary.” The Court further stated that judge Simić did not respect the presumption of innocence when iterating his allegations against the Constitutional Court, and should have turned to the relevant public prosecutor (which he never did) instead of the media, if he indeed had any evidence of his allegations.

Although I have certain reservations as to the Decision, I have personally been surprised at how effectively it resolved this issue. The Constitutional Court was certainly cognizant of the problems it has faced, for example related to the law enacted by the High Representative for Bosnia and Herzegovina, and by the constant calls for its abolishment by the political establishment of Republika Srpska (for reasons of different nature than one analyzed here). It remains to be seen if this will have any longer term consequences for the Court, although it is worth mentioning that Republika Srpska had not yet selected Simić’s replacement, more than 2 months after his dismissal, and Simić had stated that he would appeal the decision at the European Court of Human Rights.

5 comments:

Professor Kulenovic - Thanks for this posting; it is very interesting. Can you suggest, or do you know of, any English-language literature on the the B&H Constitutional Court - discussing not simply its current political role, but also why it was designed this way and what the role of the foreign justices was supposed to be?

I am personally not familiar with any comprehensive commentary of the Bosnian Constitution (and thus the C. Court), in English, except short entries in newer books covering world constitutions, and several articles in journals covering certain aspects of the case-law. One of such articles that you might find of interest is a reflection of one of the foreign judges on the court that you can download from this link - http://webfolder.eurac.edu/EURAC/Publications/edap/2004_edap07.pdf

During the state-building brainstorming in Dayton, Ohio, it was correctly thought that foreign judges were necessary if the Constitutional Court was to enjoy the full extent of its powers, having in mind that the local judges would most probably, at that time (but even now at times), vote predictably having in mind their ethical background (and certainly the way they are selected). Thus, foreign judges only act as a balancing factor of sorts, and do not have any special authorities. Interestingly, lately the local judges unanimously vote against foreign judges on certain matters.

The Constitutional Court is not the only institution in B&H with "foreign/international elements", since the Court of Bosnia and Herzegovina, as a separate institution, has also foreign judges and prosecutors (for the same reasons). However, their presence there proved to be rather controversial, at least in the eyes of Serb politicians, since that court has wider competences than the Constitutional Court (since the Constitution of B&H did not foresee the existence of the judiciary at the federal level - as far as I know, the only such instance in the world - this court partially fills the void of non-existence of the Supreme Court). Thus, as a compromise, the High Representative of the international community for B&H decided, not long ago, that the foreign judges would remain only in the War Crimes Section of the Court of B&H.

Whether there is still a need for foreign judges in these institutions is debatable. The latest scandal with Simić's dismissal proves that many still view the Constitutional Court as a suitable alternative instrument for achieving political goals. At least one consequence of this is that the Court has become much less activist lately.

I am personally not familiar with any comprehensive commentary of the Bosnian Constitution (and thus the C. Court), in English, except short entries in newer books covering world constitutions, and several articles in journals covering certain aspects of the case-law. One of such articles that you might find of interest is a reflection of one of the foreign judges on the court that you can download from this link - http://webfolder.eurac.edu/EURAC/Publications/edap/2004_edap07.pdf

During the state-building brainstorming in Dayton, Ohio, it was correctly thought that foreign judges were necessary if the Constitutional Court was to enjoy the full extent of its powers, having in mind that the local judges would most probably, at that time (but even now at times), vote predictably having in mind their ethical background (and certainly the way they are selected). Thus, foreign judges only act as a balancing factor of sorts, and do not have any special authorities. Interestingly, lately the local judges unanimously vote against foreign judges on certain matters.

The Constitutional Court is not the only institution in B&H with "foreign/international elements", since the Court of Bosnia and Herzegovina, as a separate institution, has also foreign judges and prosecutors (for the same reasons). However, their presence there proved to be rather controversial, at least in the eyes of Serb politicians, since that court has wider competences than the Constitutional Court (since the Constitution of B&H did not foresee the existence of the judiciary at the federal level - as far as I know, the only such instance in the world - this court partially fills the void of non-existence of the Supreme Court). Thus, as a compromise, the High Representative of the international community for B&H decided, not long ago, that the foreign judges would remain only in the War Crimes Section of the Court of B&H.

Whether there is still a need for foreign judges in these institutions is debatable. The latest scandal with Simić's dismissal proves that many still view the Constitutional Court as a suitable alternative instrument for achieving political goals. At least one consequence of this is that the Court has become much less activist lately.

For example, in the absence of the Supreme Court (at supra-entity level) the local judges are indirectly extending the jurisdiction of the Constitutional Court to deal with issues of merits of a case on factual grounds (relying on the "arbitrary application of law" as developed by ECHRs interpretation of Article 6 of Eur. Con., but actually going beyond it), while foreign judges see that as an unacceptable.

If interested - (one of the) the joint dissent(s) (at the bottom): http://www.ccbh.ba/eng/odluke/povuci_html.php?pid=220359